Migration Legislation Amendment Bill (No 6) 2001

WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.

define certain key terms used by the Federal Court and the
Refugee Review Tribunal (RRT) in determining refugee status so as
to narrow the interpretation given to the definition of 'refugee'
(in particular, the elements of 'persecution', 'membership of a
particular social group' and 'particularly serious crime'),

allow adverse inferences to be drawn from an absence of
documentation, or from a person's refusal to give sworn statements
verifying the truth of information provided, and

The issue of Australia's obligations to refugees
and asylum-seekers, particularly those arriving by boat, has been
politically sensitive for some time. This Bill contains measures to
address two separate and unrelated issues of concern, verifying the
identity and claims made by unauthorised arrivals, and the
interpretation given to the Refugees Convention(1) by
the courts. It also addresses some unrelated matters.

The continuing influx of unauthorised arrivals
is particularly topical at present, given the situation involving
the potential asylum-seekers rescued from their sinking boat by the
Norwegian ship the MV Tampa, and those intercepted on the
Aceng and diverted to Nauru. It is not the purpose of this
digest to recount the history of unauthorised arrivals. A
background covering people smuggling issues may be found in the
Bills Digest No 41 of 2001-2002 on the Border Protection Bill
2001,(2) and in a Parliamentary Library Current Issues
Brief entitled 'Boat People, Illegal Migration and Asylum Seekers:
in Perspective'.(3)

In 1999, the Parliament passed laws to combat
people smuggling.(4) These laws contain a variety of
offences directed at people smugglers, not the asylum-seekers
themselves, as well as expanded powers for Australian customs and
immigration officials to board, search and detain ships and to
detain persons aboard foreign vessels at sea.

The Border Protection Bill 2001 passed the House
of Representatives on 29 August 2001 but was refused a second
reading in the Senate that night. It would have given additional
separate powers to officers to return ships to sea which have
entered Australia's territorial waters, when authorised by the
Prime Minister or Minister for Immigration and Multicultural
Affairs. It would also have prevented people on board a vessel
which was turned around from being eligible to lodge applications
for protection visas.

A particular problem which the Government has
identified is that:(5)

large numbers of [unauthorised arrivals] have,
but disposed of, identifying documentation before arrival in
Australia. The smuggling operations which are providing this travel
often give highly detailed information and coaching to these
arrivals on appropriate claims and country knowledge and on
Commonwealth assessment procedures to maximise their chance of
successfully gaining a visa.

To address this problem, this Bill will permit
adverse inferences to be drawn from the absence of identity
documentation, or from a refusal to make a sworn statement
affirming the truth of information provided in their
application.

A separate but also controversial issue is the
effectiveness of Australia's tribunal and court system in assessing
claims for refugee protection.

It should be emphasised that Australia's system
of assessing refugee claims applies only to a minority of those
granted refugee visas. A clear majority of people given residence
in Australia on refugee or humanitarian grounds are accepted and
processed overseas. There are two main categories in this part of
the immigration program:(6)

refugee, covering people who meet the definition of
refugee (that is, are outside their country of origin and at risk
of persecution if they returned), or are in special need of
assistance (such as women at risk)

special humanitarian, covering people who have fled
from war or civil strife and have suffered serious human rights
violations but who may not meet the definition of refugee.

A third category, special assistance
visas for members of certain groups in vulnerable situations
overseas with strong family or other connections to Australia, is
currently being phased out.

Mary Crock, an expert in migration law at the
University of Sydney, states that 'as a sovereign nation, Australia
is free to offer protection to whoever it chooses, irrespective of
their international legal status as refugees'.(7)
Australia controls its overseas refugee and humanitarian program by
means of annual quotas on the number of people allowed to enter on
these grounds.

By contrast, Australia is not free to choose
those to whom it will offer protection once they arrive in
Australia. Once people are in Australian territory (including
Christmas Island and Ashmore Reef) and claim asylum, Australia is
obliged both under international law and the Migration Act
1958 to assess their claims for refugee status, as there is an
obligation in international law not to return, or 'refoule',
refugees to a country where they face persecution. People who are
granted refugee status, 'protection visas', are entitled to remain
in Australia. Not all of those who apply for refugee status arrive
in Australia unlawfully. Many apply while lawfully here on other
visas, such as student or visitor visas.

There is a defined procedure for applicants for
refugee protection. An application is first determined by the
Department of Immigration and Multicultural Affairs. If
unsuccessful, an applicant may apply to the RRT for review of the
Department's decision. From the RRT, judicial review applications
may be made to the Federal Court and thence to the High Court. In
some circumstances, judicial review applications are made directly
to the High Court.

The overall size of Australia's humanitarian
program, both offshore and onshore, has remained relatively stable
over the last few years. The Department of Immigration and
Multicultural Affairs estimates that it will remain at 12,000 in
the year 2001-2002. The number of offshore places is reduced by the
number of onshore protection visas granted.(8) The
following table summarises the number of offshore refugee and
humanitarian visas granted(9) compared to onshore
protection visas.

1997-98>

1998-99>

1999-2000>

2000-01>

offshore refugee and humanitarian visas

10,467

9,526

7,502

7,992

onshore protection visas

1,588

1,834

2,458

5,577

TOTAL

12,055

11,360

9,960

13,569

The offshore refugee and humanitarian program
has not proved controversial, it is the procedure and appeals
process which applies to onshore applications for refugee
protection visas which has been the focus of successive
governments. There are concerns at the number of unmeritorious
applications being made, and the cost of the refugee processing and
appeal system. This is so particularly in the light of estimates
that the Government will spend $20 million this financial year on
'barristers, solicitors and bureaucrats contesting claims by asylum
seekers for refugee status'.(10) Internationally, it is
estimated that developed nations spend $US10 billion per year
assessing refugee claims, most of which are rejected, compared to
giving only $US1 billion to the UNHCR for its work with refugees
and displaced persons around the world.(11) The Minister
for Immigration and Multicultural Affairs has commented that this
is:(12)

an absolute distortion of priorities. Ten
billion dollars on 500,000 people, most of whom will not sustain
refugee claims. It is the needy who are left behind. Saving just
one tenth of asylum determination costs could double the UNHCR's
budget.

The Parliament has already legislated in an
attempt to streamline the procedure for processing claims for
refugee protection, by introducing a strict procedural code for
review by the Refugee Review Tribunal,(13) and by
limiting the grounds of judicial review before the Federal Court
available under Part 8 of the Migration Act.(14) Three
Bills which are currently before the Parliament contain further
proposed amendments to the review process:

The Jurisdiction of the Federal Magistrates Service Legislation
Amendment Bill 2001 would give the Federal Magistrates Court
concurrent jurisdiction with the Federal Court in migration
matters, which would enable it to hear less complex appeals from
the RRT, and take some of the pressure off the Federal Court's
caseload.

The Migration Legislation Amendment Bill (No. 1) 2001 would
restrict access to the courts for judicial review of migration
decisions by preventing class actions in migration matters before
the Federal and High Courts, by changing the requirements for
standing in the Federal Court and by introducing time limits for
original applications to the High Court in migration matters.

The Migration Legislation Amendment (Judicial Review) 1998
would introduce a privative clause which would in effect remove all
avenues of judicial review of visa decisions by the Federal Court,
and leave the High Court's original jurisdiction as the only avenue
of appeal from the RRT.

This Bill has a different focus. Whereas recent
changes and proposed changes to the review process for migration
decisions, including applications for refugee protection visas,
have focussed on appeal rights and procedural matters, the present
Bill concentrates on the content of the decision-making process. It
provides definitions of key terms interpreted by the RRT and the
courts when determining whether a person is a 'refugee' and whether
Australia is under an obligation not to return a person to a place
where he or she is at risk of torture.

This reflects the Government's concern that
Australia's acceptance rate for asylum seekers of particular
nationalities is claimed to be much higher than that of the UNHCR.
For example, a spokesman for the Minister for Immigration and
Multicultural Affairs states that the UNHCR accepts 10 to 15 per
cent of refugee claims in the Middle East by Iraqis, whereas
Australia under the appeals system accepts 90 to 95 per
cent.(15)

Australia is a party to both the Convention
Relating to the Status of Refugees done at Geneva on 28 July 1951
(the Refugees Convention) and the Protocol relating to the
Status of Refugees done at New York on 31 January 1967 (the
Refugees Protocol).

The Refugees Convention, read together with the
Refugees Protocol, defines 'refugee' relevantly
as:(16)

Any person who ... owing to a well-founded fear
of being persecuted for reasons of race, religion, nationality,
membership of a particular social group or political opinion, is
outside the country of his nationality and is unable or, owing to
such fear, is unwilling to avail himself of the protection of that
country; or who, not having a nationality and being outside the
country of his former habitual residence as a result of such
events, is unable or, owing to such fear, is unwilling to return to
it.

Under the Refugees Convention, a person is not
within the definition of 'refugee' in a number of circumstances,
including:

where a person has voluntarily returned to his or her country
of nationality or residence, or has acquired a new nationality, or
where the circumstances constituting persecution have ceased to
exist,(17)

where a person is currently receiving protection or assistance
from organs or agencies of the United Nations other than the United
Nations High Commissioner for Refugees,(18)

where a person has a right of residence in a third country,
which gives him or her rights and obligations equivalent to
citizens of that country,(19) or

where 'there are serious reasons for considering that' the
person has either:(20)

committed a crime against peace, a war crime, or a crime
against humanity;

committed a serious non-political crime outside the country of
refuge prior to his admission to that country as a refugee; or

been guilty of acts contrary to the purposes and principles of
the United Nations.

This definition has been incorporated into
Australian law. Section 36 of the Migration Act 1958
creates a class of visas, called 'protection visas', which a person
is entitled to if he or she is 'a non-citizen in Australia to whom
Australia has protection obligations under the Refugees Convention
as amended by the Refugees Protocol'.(21) Thus, it falls
to the Department, and on review the RRT and the Federal and High
Courts, to consider the definition of 'refugee' given above,
together with the exclusions.

Neither the Refugees Convention nor the Refugees
Protocol defines key terms, such as 'owing to a well-founded fear',
'persecution', 'membership of a particular social group' or
'political opinion'. These terms are interpreted differently by the
courts and tribunals in individual countries which are parties to
the Refugees Convention and the Refugees Protocol. A body of case
law has been developed by the RRT, the Federal Court and the High
Court over the last decade on the meaning of key terms. At one
time, perhaps, the courts warned against taking an overly technical
approach to the interpretation of key terms.(22)
However, the effluxion of time, and the volume of litigation, has
seemingly eroded that view. It is the Government's view that at
least in some respects the interpretations given by the courts are
overly broad. The Minister for Immigration and Multicultural
Affairs, the Hon. Philip Ruddock, MP, stated in his second reading
speech:(23)

In the absence of clear legislative guidance,
the domestic interpretation of our obligations has broadened out
under cumulative court decisions so that Australia now provides
protection visas in cases lying well beyond the bounds originally
envisaged by the convention. These generous interpretations of our
obligations encourage people who are not refugees to test their
claims in Australia, adding to perceptions that Australia is a soft
touch.

The Bill provides definitions of some of the
phrases and concepts used in the definition of refugee, but not the
majority. Those defined are 'persecution', the causal link 'by
reason of', and one of the five 'Convention grounds' of persecution
- 'membership of a particular social group'. It also requires that
conduct by a person once in Australia shall in normal circumstances
be disregarded in considering whether the person has a
'well-founded fear of persecution'.

The Bill also defines one term used in an
exclusory provision, namely, 'non-political crime' committed
outside the country of refuge.

It is important to realise that the Refugees
Convention does not contain a right of asylum for persons who
satisfy the definition of 'refugees'. Refugees have no direct right
to gain entry to a country of refuge. This has been accepted by the
courts in a number of countries.(24) The only obligation
contained in the Convention is to guarantee
non-refoulement, that is, non-return of refugees to the
place of persecution.

Article 33 of the Refugees Convention
provides:

No Contracting State shall expel or return ("refouler") a
refugee in any manner whatsoever to the frontiers of territories
where his life or freedom would be threatened on account of his
race, religion, nationality, membership of a particular social
group or political opinion.

The benefit of the present provision may not, however, be
claimed by a refugee whom there are reasonable grounds for
regarding as a danger to the security of the country in which he
is, or who, having been convicted by a final judgment of a
particularly serious crime, constitutes a danger to the community
of that country.

The effect of this is that there is no
obligation to take persons into Australia if they claim to be
refugees. However, once refugees are in Australia, there is an
obligation not to return them to the place of persecution. This
means in effect that Australia needs to have a system for
determining whether a person who claims to be a 'refugee' in fact
satisfies the definition. There is an exception to the obligation
of non-refoulement, even where a person is a 'refugee' as defined,
if the person has committed a 'particularly serious crime' and
constitutes a danger to the Australian community. Neither the
Refugees Convention nor the Refugees Protocol provides any guidance
as to what types of crime will be 'particularly serious' such as to
'constitute a danger to the community'. The Bill proposes to insert
a definition of 'particularly serious crime' into the Migration
Act 1958.

The Bill proposes to spell out the meaning of
certain phrases and criteria used in the Convention definition of
'refugee' and list of exclusions. These changes will apply to all
applications for a protection visa made after the Bill commences,
and to applications which have not been determined (either by the
Department, or on review by the RRT or AAT) at the time the Bill
commences (item 7).

Meaning of 'persecution'

New section 91R provides a
definition of 'persecution'. It deals with a number of elements of
the Refugees Convention definition, namely what conduct amounts to
'persecution', when is the persecution 'by reason of' a Convention
ground and the exclusion of conduct after the applicant for refugee
protection is in Australia.

'persecution' must demonstrate serious harm

In a number of cases, the High Court and the
Federal Court have considered what types of conduct will amount to
'persecution'. In Applicant A, Justice Gummow affirmed the
formulation given by the Federal Court in
Ram:(25)

Persecution involves the infliction of harm, but
it implies something more: an element of an attitude on the part of
those who persecute which leads to the infliction of harm, or an
element of motivation (however twisted) for the infliction of harm.
People are persecuted for something perceived about them or
attributed to them by their persecutors.

Justice McHugh in Chan's case accepted
that 'not every threat of harm' amounts to persecution, that there
must be some notion of selective harassment. Thus, the High Court
has consistently held that victims of epidemics, natural disasters,
or famines, war or civil disturbance (such as Somalia) or economic
misfortunes do not fall within the meaning of the phrase
'persecution'.(26)

Systematic harassment may constitute
persecution, but persecution may also be a single act of
oppression, if it forms part of a systematic course of conduct
directed against members of a class of persons.(27)
Indeed, in Ibrahim, Justice McHugh, concerned at the
misunderstanding that had arisen from the term 'systematic
conduct', considered it was better to avoid the term, but
emphasised that it did not require an individual to show a series
of coordinated acts directed at him or her. All it required was
non-random acts for a Convention reason.(28)

A wide range of acts and threats are
contemplated by the definition of 'persecution', including being
shot, or tortured, or raped. However, other forms of harm falling
short of threats to life or liberty may also constitute
'persecution'. As Justice McHugh has stated, persecution 'may take
an infinite variety of forms from death or torture to the
deprivation of opportunities to compete on equal terms with other
members of the relevant society'.(29) These may include
serious violations of human rights, and various forms of 'social,
political and economic discrimination', such as 'the denial of
access to employment, to the professions and to education or the
imposition of restrictions on the freedoms traditionally guaranteed
in a democratic society such as freedom of speech, assembly,
worship or movement'.(30) Justice McHugh also considered
that '[d]enial of access to food, clothing and medical supplies,
for example, would constitute persecution in most
cases'.(31)

On the other hand, discriminatory acts which are
'appropriate and adapted to achieving some legitimate object of the
country' will not amount to persecution.(32) The High
Court has held that the application of a law of general
application, such as a law penalising Chinese couples who have more
than one child,(33) or imposing sanctions on Armenian
conscientious objectors to military service, would not amount to
persecution.(34) However, in some circumstances such
laws could amount to persecution, for example where the law imposed
forcible sterilisation as a sanction,(35) or where the
type of military action to which a conscientious objector was
opposed 'is condemned by the international community as contrary to
basic rules of human conduct'.(36) Thus, in Chen Shi
Hai, the High Court held that the denial of food, shelter,
medical treatment and a right of education to children born outside
the parameters of China's one-child policy constituted persecution,
even though the denial occurred under laws of general
application.(37) In two cases involving Sri Lankan
nationals, the Full Federal Court has accepted that routine
mistreatment of Tamils in detention on the basis of their ethnicity
constitutes persecution.(38)

It needs to be emphasised there needs only to be
a 'real chance' of persecution for there to be a 'well-founded fear
of persecution'. This may be less, indeed considerably less, than a
50% chance, but must be more than fanciful.(39) This
test will not be affected by the changes proposed in the Bill.

The Bill contains a definition which stipulates
that persecution must involve 'serious harm to the person' that
'involves systematic and discriminatory conduct' (new
paragraphs 91R(1)(b) and (c)). 'Serious harm' is defined
in new subsection 91R(2) to include:

a threat to the person's life or liberty;

significant physical harassment of the person;

significant physical ill-treatment of the person;

significant economic hardship that threatens the person's
capacity to subsist;

denial of access to basic services, which threatens the
person's capacity to subsist;

denial of capacity to earn a livelihood of any kind, which
threatens the person's capacity to subsist.

The first point to note is that the serious harm
must be to the person who seeks refugee status. It is not enough to
fear serious harm to a member of one's family. Thus, in the case of
Giraldo,(40) the father would be unable to
obtain refugee protection in Australia based on a fear that
guerillas would forcibly recruit his teenage daughter. Under the
Bill, only the daughter herself would be able to seek refugee
status. The treatment of family members is also considered below
under the heading 'Other Amendments'.

Secondly, the Bill does not define what
constitutes 'systematic and discriminatory conduct'. Further, the
relationship between the 'systematic and discriminatory conduct'
criterion and the 'serious harm' criterion is unclear. On the one
hand, it is unclear whether, as the courts have accepted,
systematic conduct may be against a group of persons or needs to be
a course of conduct directed against the individual refugee
claimant. On the other hand, while the 'systematic and
discriminatory conduct' criterion is general, the 'serious harm'
criterion is specific. It must be 'serious harm against the
person'. Arguably, the definition reflects the distinction drawn by
the courts between the persecution directed at the group and the
particular acts or threats feared or suffered by the individual.
Thus, serious harm to the individual may constitute persecution
even if it is not repeated or sustained provided it is part of a
wider context of 'systematic and discriminatory conduct'.
Conversely, it is acknowledged that less serious harm to the
individual may constitute persecution even if it does not fall
within one of the listed forms of 'serious harm' provided it is
part of a specific context of 'systematic and discriminatory'
against the individual.(41)

Thirdly, any economic persecution claimed must
be so severe as to threaten a person's capacity to subsist. This
would arguably still encompass the level of denial of basic
services claimed would be suffered by the child applicant in
Chen Shi Hai, who on the evidence would be denied medical
treatment, education, and other basic services. But other, less
extreme economic deprivations may not be covered, even if they were
part of a course of systematic and discriminatory conduct.

Causal link - 'for reasons of'

The Refugees Convention stipulates that
persecutory conduct must be 'for reasons of' one of the five
grounds enumerated in the Convention, namely race, religion,
nationality, political opinion, or membership of a particular
social group.

It is clear from existing caselaw that there
must be a causal nexus between the persecution feared and one of
the five 'Convention grounds' for persecution.(42) The
words 'persecution' and the grounds specified in the Refugees
Convention, namely, race, religion, nationality, membership of a
particular social group or political opinion, are linked by the
phrase 'for reasons of'. Thus, all the elements of the definition
of 'refugee' are linked by a common thread. As the majority of the
High Court observed in Chen Shi Hai:(43)

As was pointed out in Applicant A, not
every form of discriminatory or persecutory behaviour is covered by
the Convention definition of "refugee". It covers only conduct
undertaken for reasons specified in the Convention. And the
question whether it is undertaken for a Convention reason cannot be
entirely isolated from the question whether that conduct amounts to
persecution. Moreover, the question whether particular
discriminatory conduct is or is not persecution for one or other of
the Convention reasons may necessitate different analysis depending
on the particular reason assigned for that conduct.

It appears that where persons of a particular
race, religion or nationality are discriminated against or treated
differently, this without more may be presumed to be 'for reasons
of' that race, religion or nationality. That is because,
ordinarily, race, religion and nationality do not provide a reason
for treating people differently. However, the situation is more
complex in relation to membership of a particular social group or
political opinion, as there may be reasons to treat some groups
differently, for example to protect society from terrorist
groups.(44) The issues associated with membership of a
social group are considered below under the heading 'Meaning of
"membership of a particular social group"'.

The Federal Court has in a number of cases held
that there may be a well-founded fear of persecution even where the
persecutors may have more than one reason or motive for persecuting
a person. It is not a requirement that the Convention ground be the
sole ground for fear of persecution.(45) In particular,
a motive to extort money from a person because of self-interest may
coexist with a Convention ground for persecution, if the person was
selected as a target for extortion by reason of their race,
religion etc.(46)

The Bill tightens this causal connection by
requiring that the Convention reason be 'the essential and
significant reason' for the persecution (new paragraphs
91R(1)(a)).

This means it will in future not be sufficient
to demonstrate that a Convention ground was one of a number of
motivations for persecution, it must be 'the essential and
significant reason'. It seems that although it still may be
possible to allege more than one motivation, the Convention ground
must be essential, that is, if the Convention ground were not
present, there would be no fear of persecution. This would appear
to equate roughly with the common law 'but for' test of
causation,(47) and perhaps even the 'true reason'
test,(48) which have been the subject of divergent views
in the Federal Court(49) and
elsewhere.(50)

Conduct after arriving in Australia to be disregarded

In some situations applicants who may not
otherwise have fallen within the definition of 'refugee' have
created claims for refugee status once in Australia by engaging in
activities which may result in persecutory conduct if they were
returned to their country of origin. Sometimes the suspicion arises
that these activities were engaged in for the sole purpose of
manufacturing or enhancing a claim for refugee status.

In two relatively early cases, the Federal Court
enunciated the proposition that a person who has deliberately
created the circumstances which give rise to a fear of persecution
is not entitled to recognition as a refugee. In
Somaghi,(51) the applicants, after their
applications for refugee status were rejected, wrote a letter to
the Iranian embassy which was highly critical of the Iranian
regime. Their claim to fear persecution based on the writing of the
letter was rejected by the tribunal and the Federal Court, on the
basis that the sole purpose of their action was to create a pretext
for invoking fear of persecution.

Similarly, in Li, the Federal Court
rejected a claim based on a protest in immigration
detention.(52) The applicants in that case were Chinese
nationals who arrived by boat and were detained at Port Hedland.
After a negative assessment of their claims to refugee status, they
became involved in a hunger strike and protest on the roof of the
Port Hedland detention centre. They held banners critical of the
Chinese government. The applicants jumped from the roof and
sustained serious injuries, one becoming a paraplegic. The court
did not take their actions into consideration, as it found they
were not a genuine protest against the Chinese political situation,
but rather were designed to put pressure on the Australian
immigration authorities.

However, in more recent cases, judges of the
Federal Court have declined to follow this principle. They have
instead accepted that in some circumstances a person may be a
refugee even if the fear of persecution arises out of his or her
own deliberate conduct, particularly the voluntary expression of a
political opinion. They have limited the rule in Somaghi's
case to circumstances where the person aims to create a pretext,
thus does not have a 'well-founded' fear because the basis of the
claim is made in bad faith and is not genuine. They emphasise that
the question remains in all cases whether a person holds a genuine
and well-founded fear of persecution for a Convention reason. The
leading case is Mohammed,(53) in which a
Sudanese national in immigration detention in Australia wrote a
letter to his brother detailing his claim for refugee status here,
his political activity and his opposition to military service. He
claimed the letter had been intercepted by Sudanese censors and
would expose him to risk of serious harm were he to return to
Sudan. French J stated:(54)

There will be cases in which a deliberate act,
expressive of a particular political opinion will give rise to a
risk of persecution that supports a well-founded fear for the
purposes of the Convention. Good faith will not necessarily have
any part to play in such a case. Acts of refugees expressing
political opinions outside the country of nationality may be done
for a variety of reasons. They may be intended to be supportive of
those who remain at risk within their country of origin. They may
be designed to bring international pressure to bear upon that
country. They may be designed to draw the attention of the country
to whom they are applying for refugee status, and of its community,
to the situation in the country of nationality. There may be a case
in which a person genuinely holds an opinion which would attract
persecution if known to the country of origin and who deliberately
draws that opinion to the attention of authorities in that country
to crystallise or demonstrate the basis for the fear which is
asserted. All of these reasons may be consistent with the existence
of a well-founded fear of persecution, albeit it is enhanced or
even brought into existence by the conduct in the country of
residence.

Special leave to appeal in the Mohammed
case was granted by the High Court on 22 June 2001. The appeal has
not yet been heard.

Under the changes proposed in the Bill, in most
circumstances conduct engaged in by a person in Australia must be
disregarded in considering whether the person has a well-founded
fear of persecution (new subsection 91R(3)).
Conduct in Australia can be taken into consideration only if the
applicant satisfies the decision-maker that he or she engaged in
the conduct for a purpose other than to strengthen his or her claim
to refugee status. This throws the burden of proof squarely onto
the applicant.

This change would exclude evidence of protests
engaged in by persons once in Australia, such as conduct critical
of their home government.

Meaning of 'membership of a particular social
group'

Professor John McMillan of the Australian
National University, has noted that the phrase 'membership of a
particular social group' has recently become the focus of
exceptional judicial attention, more than the other four grounds of
persecution mentioned in the definition of 'refugee'. He
continues:(55)

Issues that have arisen in recent litigation
include whether the phrase 'particular social group' extends to the
targets of organised crime, parents in breach of China's one child
policy, Chinese children disadvantaged by that policy, members of a
family, warring clans, deserters from the police force, young
Somali women, wives who have been the subject of domestic violence,
homosexuals, and Tamils routinely questioned under Sri Lanka's
anti-terrorist strategy.

The Bill does not attempt to provide a
comprehensive definition of what constitutes a 'particular social
group'. It does not disturb the majority of the jurisprudence which
has developed in the High Court and the Federal Court on this
issue. The key statements remain those of the High Court in
Applicant A.

In Applicant A,(56) the High
Court held that a 'particular social group' cannot be defined by
reference to a common fear of persecution. There must be some other
characteristic or 'common unifying element'(57) which
unites a group and sets them apart from society at large. The group
must exist independently of, and not be defined by, persecution.
Thus, a majority of members of the Court rejected the idea that
Chinese nationals opposed to China's 'one child policy' constituted
a 'particular social group', since the defining feature of that
group was their opposition to government policy, which may expose
them to adverse consequences.

Dawson J accepted that a family could constitute
a social group, and that groups did not have to be large
ones.(58) However, McHugh J considered that the term was
probably intended only to cover reasonably large groups of people,
such as landowning classes, not smaller groups such as members of a
club.(59)

The amendment proposed in the Bill is confined
to when the 'particular social group' is claimed to be a person's
family. Recent decisions of the Federal Court have clearly stated
that a family can constitute a 'particular social
group'.(60) This is supported by academic
writers.(61) The Bill is clearly intended to prevent the
results in a few recent Federal Court decisions from being repeated
in future. These decisions involved fear of criminal attacks
against a person by reason of a family connection.

In Aliparo(62) Justice
O'Connor considered whether Mrs Aliparo had a well-founded fear of
being persecuted by reason of her membership of a 'particular
social group', namely her family. In that case, her husband
witnessed and then decided to expose the kidnapping of innocent
citizens by high-ranking officials in the Philippines. Her husband
had himself been kidnapped and tortured and threatened in order to
prevent him from informing, and Mrs Aliparo had also been attacked
by officials. Justice O'Connor concluded that Mrs Aliparo's fear of
persecution stemmed not from her membership of her family, but
because of her husband's act in reporting a possible crime. She
therefore concluded that the retaliation feared was feared on an
individual basis rather than because Mrs Aliparo's family
could be seen as a 'particular social group'.

This decision was not followed in two later
decisions involving Colombian nationals. In
Sarrazola,(63) the Full Federal Court accepted
that Mrs Sarrazola could be a refugee by reason of her membership
of the 'particular social group' comprised of her family. In that
case, Mrs Sarrazola's brother had been involved in criminal
activities, and had been murdered, apparently for failure to pay
his debts. She feared persecution by the criminals who were
responsible for the death of her brother, and who had made threats
and financial demands against her to pay her brother's debt. The
Full Federal Court rejected the view that a family can only be a
'particular social group' if it is linked to a broader group
identified by one of the grounds of persecution mentioned in the
Refugees Convention. Peter Nygh, the former Principal Member of the
RRT, has said that:(64)

This decision has considerable potential to
expand the ambit of the Convention. Although the person who is the
particular focus of the pressure may not qualify as a refugee (and
may even be regarded as unworthy of protection), members of his or
her family may qualify.

Similarly, in C and S, Wilcox J
considered an application for refugee status made by the wife and
mother of a Colombian man who feared retribution because of his
actions in informing on illegal activities involving local
political figures and law enforcement officials at the nightclubs
where he worked. He held that the wife and mother were capable of
falling within the particular social group constituted by C's
family. A family exists as a social group unified by relationships
of blood and marriage which are independent of a fear of
persecution. The RRT should therefore have considered whether the
persecution feared by C's wife and mother arose because of their
membership of his family.(65) It is noteworthy, however,
that in that case, there was a possibility that the persecution
feared by C may itself be for a Convention reason, namely his
political opinion. Acts informing on or exposing systemic
corruption and criminality by government officers might be a
manifestation of a 'political opinion', depending on the facts of
the case.(66)

The Bill provides that in determining whether a
person has a well-founded fear of persecution by reason of
membership of a particular social group consisting of his or her
family, any persecution or fear of persecution that the person or
any family member (including deceased family members) has
experienced which is not attributable to a Convention ground is to
be disregarded (new section 91S).

Thus, on the facts of Sarrazola, the
death of Mrs Sarrazola's brother was attributable to his criminal
activities and failure to pay his debts, so could not be relevant
in considering Mrs Sarrazola's fear of retribution for her failure
to pay her brother's debts.

In contrast, the fear of persecution which arose
in Giraldo(67) (fear that guerillas would
forcibly recruit his teenage daughter) would not need to be
disregarded under the Bill. This is because the applicant claimed
his fear arose by reason of his own and his wife's uncle's
political associations with the Liberal Party of Colombia, hence
maybe by reason of his 'political opinion'.

Meaning of 'non-political crime'

As noted above, pursuant to Article 1F, a person
is not recognised as a refugee by the Refugees Convention if he or
she has committed 'a serious non-political crime outside the
country of refuge prior to his admission to that country as a
refugee'. This exclusion was inserted to ensure that persons
considered not worthy of international protection were not able to
avail themselves of that protection.(68) This exclusion
applies only to crimes committed outside the country of refuge - in
this case, outside Australia. For crimes committed within
Australia, Article 33, discussed below, is applicable.

The UNHCR Handbook states that in
considering whether a crime is 'non-political' or
'political':(69)

regard should be given in the first place to its
nature and purpose i.e. whether it has been committed out of
genuine political motives and not merely for personal reasons or
gain. There should also be a close and direct causal link between
the crime committed and its alleged political purpose and object.
The political element of the offence should also outweigh its
common-law character. This would not be the case if the acts
committed are grossly out of proportion to the alleged objective.
The political nature of the offence is also more difficult to
accept if it involves acts of an atrocious nature.

Interpretations along these lines have been
given in courts in a number of countries,(70) including
Australia.(71)

Further, although what constitutes a 'serious'
crime is difficult to define, it should be not every crime, but
only 'a capital crime or very grave punishable act'.(72)
The Handbook considers that the seriousness of the offence
should be balanced against the degree of the persecution feared.
Special mention is made of hijacking of aircraft, and the
Handbook states that it is a question to be carefully
examined on the facts of each individual case whether the hijacker
should be granted refugee status.(73)

The Minister has observed
that:(74)

In recent times the courts have determined that
applicants are owed protection obligations if they have committed a
serious crime with mixed personal and political motivations, even
where the political motivation is a minor element of their
motivation.

New section 91T provides a
definition of a 'non-political crime', as a crime 'where the
person's motives for committing the crime were wholly or mainly
non-political in nature'. This is consistent with, although not as
detailed as, the statement in the UNHCR's Handbook.

In addition, the Bill prescribes that certain
offences are deemed to be non-political, whatever the circumstances
or motivations. These offences include:(75)

hijacking or endangering the safety of an aircraft in flight, a
ship, or a fixed offshore platform (such as an oilrig)

genocide and associated crimes such as conspiracy to commit
genocide

hostage taking

torture

extraditable offences as declared in regulations made pursuant
to a multilateral extradition treaty, and

murder, kidnapping or other attack (or attempted attack) on a
foreign head of state, foreign official or official of an
international organisation, or a member of their family.

Thus, even if these crimes are committed with a
political motivation, the person will not be considered a 'refugee'
under the Bill and Australia will have no obligation to grant a
protection visa, but may return the person to their country of
origin.

Meaning of 'particularly serious crime'

As noted above, Article 33 of the Refugees
Convention provides an exemption from the obligation of
non-refoulement of refugees where a refugee has committed a
'particularly serious crime' in the country of refuge. That is,
Australia is entitled to expel a person who has been granted
refugee protection if that person commits a 'particularly serious
crime' in Australia, even if expelling the person would expose him
or her to a risk of persecution.

Mary Crock has noted that the AAT has struggled
with the meaning of 'particularly serious crime', and complained
that the UNHCR Handbook is not particularly helpful in explaining
it.(76) The Federal Court in Todea held that a
conviction of supplying heroin, which resulted in a sentence of
four years, was a particularly serious crime.(77) In
Betkhoshabeh, an Iranian national developed a psychiatric
illness involving severe paranoid delusions during time spent in
immigration detention. After he was granted a visa, he was
convicted of aggravated burglary and threats to kill, which arose
in the context of a delusional obsession he developed over a female
interpreter. He was sentenced to three and a half years
imprisonment. The Federal Court held that his psychiatric condition
should be considered as a mitigating factor, but nevertheless his
crimes were capable of being considered 'particularly
serious'.(78)

New section 91U defines
'particularly serious crime' to mean an offence punishable by a
maximum term of imprisonment for life or at least 3 years, which
is:

a crime involving violence against a person

a serious drug offence

a crime involving serious damage to property, or

an offence of either escaping from immigration detention or
manufacturing, possessing, using or distributing a weapon while in
immigration detention.(79)

What constitutes a 'serious' drug offence or an
offence involving 'serious' damage to property is not defined, but
will be left to the courts to interpret. Thus, in some respects
new section 91U does little to clarify the meaning
of 'particularly serious crime', merely substituting a different
phrase requiring judicial interpretation.

The Bill premises its definition of
'particularly serious crime' on the maximum sentence applicable to
the category of offence in general, rather than the sentence given
to the specific convicted person. Thus, the category of offence may
attract a substantial sentence, but the actual offence may not
have. For example, assault occasioning actual bodily harm in the
ACT attracts a maximum sentence of 5 years imprisonment, and thus
falls within the definition of 'particularly serious
crime'.(80) However, a person may in fact have been
sentenced to only one year or possibly even less, given the
circumstances of the actual assault.

After applying this expanded definition, a
decision-maker will still be required to consider the separate
requirement under Article 33 that the person convicted of such a
crime represents a risk to the community. A decision-maker retains
a discretion whether or not to expel a person convicted of these
crimes.

The Minister for Immigration and Multicultural
Affairs is deeply concerned 'about the number of unauthorised
arrivals entering Australia without documentation establishing
their identity and nationality'.(81) A recent, high
profile case, was that of the Somali asylum-seeker SE who arrived
on a flight without proper immigration documents, and was refused
immigration clearance. He then applied for a refugee protection
visa, which was refused. The case went to the High Court, which
upheld the right of the Minister to deport him from
Australia.(82)

Oath or affirmation

New section 91V permits the
Minister or an officer to request certain persons to make a sworn
statement, on oath or affirmation, that the information provided to
the Department is true. This power applies to:

an applicant for a protection visa, in relation to information
contained in the visa application (new subsection
91V(1)), and

a non-citizen refused immigration clearance, in relation to
relevant information given either during immigration clearance or
after being refused immigration clearance (new subsection
91V(4)).

If the person refuses to make a sworn
declaration of truth, the Minister will be entitled to 'draw any
reasonable inference unfavourable to the [person's] credibility'.
The person must have first been warned of this consequence when he
or she was requested to make the sworn statement (new
subsections 91V(2) and (5)).

Even if the person does swear to the truth of
his or her application, the Minister can 'draw any reasonable
inference unfavourable to the [person's] credibility' if he or she
believes that the person was not sincere, either because of the
person's demeanour or something in his or her manner (new
subsections 91V(3) and (6)).

Documentary evidence

New section 91W permits the
Minister or an officer to request an applicant for a protection
visa to produce documentary evidence of his or her identity,
nationality or citizenship. If the applicant refuses, the Minister
may draw any reasonable inference unfavourable to the applicant's
identity, nationality or citizenship. The person must have first
been warned of this consequence when he or she was requested to
produce the document or documents (new subsection
91W(2)).

The Bill also makes a small number of
miscellaneous amendments, which appear unrelated to the two major
themes discussed above.

Spouse can get a 'protection visa'

Currently, a person applying for a protection
visa must be a non-citizen in Australia who meets the definition of
'refugee' in the Refugees Convention.(83)Item
2 proposes that, in addition, a non-citizen in Australia
who is the spouse or a dependant of a person who has been granted a
refugee protection visa will also be eligible for a protection
visa.

The Explanatory Memorandum clarifies
that this is not expressly required under the Refugees Convention,
but that 'it has been longstanding practice in Australia' to allow
the spouse and dependants of a person granted a protection visa to
also be granted a visa to remain in Australia.(84) This
amendment will formalise the longstanding practice.

A difficulty with this may arise in relation to
parents. Under the amendments to the definition of 'persecution',
the harm feared must be that of the person himself or herself, it
is not sufficient to fear harm to one's children. However, if a
child is recognised as a refugee, the 'spouse or dependant'
extension will not apply to the child's parents. Clearly, child
refugees will need the ongoing support and presence of one or both
parents. It is not impossible to imagine cases where a child
satisfies the 'refugee' test but a parent does not. This was the
case in Chen Shi Hai, and would be a possible outcome of
circumstances similar to Giraldo.

Multiple applications for 'protection visa'
prohibited

Currently, a person who was in the migration zone (that is, on
Australian soil) and has applied for a protection visa but the visa
has been refused may not lodge a further application for a
protection visa while still in the migration zone.(85)Item 3 extends this bar on lodging further
applications to situations where a protection visa has been granted
but is subsequently cancelled (new subsection
48A(1A)). A visa may be cancelled for a number of reasons,
including where:

incorrect information was provided on a visa application

a condition of the visa has not been complied with

any circumstances which permitted the grant of the visa no
longer exist, or

the person's presence in Australia is 'a risk to the health,
safety or good order of the Australian
community'.(86)

The extension to cancelled visas is consistent
with the prohibition applicable to visas other than protection
visas which have been refused or cancelled.(87)

The Minister will continue to have the power to
waive the application of this prohibition to a specific person
where it is in the public interest to do so.(88)

Item 4 ensures that a person
who has applied for a protection visa on the basis of being a
spouse or dependant of a non-citizen in Australia is also
prohibited from making a subsequent application while in the
migration zone. The Explanatory Memorandum notes
that:(89)

This change is necessary to prevent misuse of
the protection visa process by family groups wishing to prolong
their stay in Australia by lodging protection applications
serially, each member taking turns to advance claims for protection
while the others apply as family members.

Confidentiality of applicants' names

The Federal Court and the High Court will be
prohibited from publishing the name of a person who has applied for
a protection visa or a protection-related bridging visa, or whose
protection visa or protection-related bridging visa has been
cancelled (new section 91X). This will apply to
any proceeding which is begun after the new section commences
(item 8). The apparent reason is to prevent a
person so named, their family and colleagues, etc. from being
subject to discrimination or persecution as a
result.(90)

A broader confidentiality protection will apply
to the Administrative Appeals Tribunal. Pursuant to new
section 501K, the AAT must not publish any information
which may identify the person or any relative or other dependant of
the person. It is not clear what the rationale is for the broader
protection given to applicants before the AAT than before the
Federal Court or High Court. This will apply to any application for
review which is made after the new section commences (item
10).(91)

No restriction on the publication of names or
other identifying information is imposed on the RRT. This may be
explained by the fact that, although RRT decisions are freely
available on the Internet, they are identified by application
number rather than by the name of the applicant.

Minister's discretion to substitute more favourable
decision

New section 501J gives the
Minister a power to substitute a more favourable decision for a
decision of the AAT to refuse or cancel a protection visa, if he or
she 'thinks that it is in the public interest to do
so'.(92) This provision complements the Minister's
existing powers to substitute a more favourable decision for that
of the RRT(93) or of the AAT when the RRT refers a
decision to it.(94) The Minister must table a statement
in each House of Parliament setting out the reasons for his or her
decisions, but not naming or identifying the applicant.

This power applies to any decision of the AAT,
whether made before or after the commencement of the Bill
(item 9).

The Government justifies the amendments proposed
in the Bill by reference to other ways in which the money saved on
the determination process could be better spent. The Minister for
Immigration and Multicultural Affairs in his second reading speech
made the following statement:(95)

Significantly, every protection place in
Australia which is obtained through deception and every protection
place which is provided to a person who would not be covered by the
proper interpretations of the refugees convention because of the
way domestic law has developed, represents a place taken from the
neediest refugees languishing in refugee camps around the
world-those, I might say, who cannot safely return home, those who
are unsafe where they are and are in dire need of our support.
...

The challenges to the integrity of our onshore
determination processes and the broadening out of our Convention
obligations in domestic law directly undermine the capacity of
Australia to contribute effectively to protecting refugees both in
Australia and who are in refugee camps and in most need of
resettlement.

This Bill may come as part of a broader agenda
to tighten the definition contained in the Refugees Convention
itself, a proposal which is reputed to be being considered by
Australia, Britain and other Western European countries in the
lead-up to talks to be held by the UNHCR later this year to mark
the fiftieth anniversary of the Convention.(96)

The Democrats have criticised the proposal while
Labor has reserved its position until it has the chance to examine
the Bill in detail. Refugee advocates have also criticised the
proposals. Martin Clutterbuck, coordinator of the Refugee and
Immigration Legal Centre in Melbourne, is concerned about attempts
to fix the meaning of the terms used in the Refugees Convention as
they were understood in 1951, when one of the strengths of the
Convention has been its ability to adapt to changing international
conditions over its fifty year history. This could result in
genuine victims of new forms of persecution being excluded from
Australia in future.(97) Amnesty International has also
expressed concerns about the proposal, accepting the need for
judicial decisions to expand the scope of the Refugees
Convention.(98)

Liz Curran, a Lecturer in Law and Legal Studies
at Latrobe University, has noted that in the migration area,
Governments have a history of pushing through legislation to
overturn court decisions or to legalise positions which are
currently under review by appellate courts. After giving examples,
she concludes that:(99)

Legislative changes can serioulsy reduce a
court's capacity to exercise judicial review in an effective and
real sense. ... Politicians in recent times have often seen the
approach of the courts as 'problematic' and 'uncertain'. But to
neglect liberty and to finesse the protection of human life may
also prove problematic. For courts to be effective, and to retain
public confidence, they must be armed with the capacity to be
flexible enough to deliver justice, particularly in cases which are
so distinct and various in their circumstances.

This may be pertinent in view of the fact that
the High Court has not yet heard the appeal in Mohammed's
case, which should clarify the law in relation to whether conduct
engaged in within Australia can be relied on to found a claim to
refugee status or should be disregarded.

It has been reported that the Government was
awaiting comment from the UNHCR on the proposals to restrict the
definition.(100) It is not clear whether the UNHCR has
yet provided any comments, and if so, whether it supports the
amendments.

If asylum seekers make valid applications for protection visas,
and satisfy any health criteria or other criteria prescribed under
Australian law, the Minister must grant the visas: section 65 of
the Migration Act 1958.

In Okere Branson J equated the common law test with a
test which sought to identify the 'true reason for the persecution
which is feared' (at 118). This approach was reiterated by Branson
J in Kanagasabai v Minister for Immigration and Multicultural
Affairs [1999] FCA 205 and cited with approval by Einfeld
Moore and Branson JJ in Minister for Immigration and
Multicultural Affairs v Sarrazola (1999) 95 FCR 517 at 522.

Minister for Immigration and Multicultural Affairs vMohammed (2000) 98 FCR 405. Other cases in which
Mohammed has been followed include: Wang v Minister
for Immigration and Multicultural Affairs [2000] FCA 1599;
Omar v Minister for Immigration and Multicultural Affairs
[2000] FCA 1430; Minister for Immigration and Multicultural
Affairs v Farahanipour [2001] FCA 82. This approach has also
been adopted by the United Kingdom Court of Appeal in Danian v
Secretary of State for the Home Department [2000] Imm A.R 96
and by the United States Court of Appeals, Seventh Circuit, in
Bastanipourv Immigration & Naturalization
Service (1992) 980 F 2d 1129.

Professor Hathaway states "[a]s a rule, therefore, whenever
there is an indication that the status or activity of a claimant's
relative is the basis for a risk of persecution, a claim grounded
in family background is properly receivable under the social group
category": J. Hathaway, The Law of Refugee Status, 166.
See also G. Goodwin-Gill, The Refugee in International
Law, 30.

The Explanatory Memorandum states that 'publication can create
a need for protection for the litigants and also place their family
and colleagues overseas at risk': at p. 15.

Although item 10 is incomplete in the copy of
the Bill before Parliament, an amendment to the effect noted will
be tabled during the second reading debate in the House of
Representatives.

The AAT has power to review a decision of a delegate to refuse
to grant or to cancel a protection visa, relying on one or more of
Articles 1F, 32 or 33(2) of the Refugees Convention, section 500 of
the Migration Act 1958.

Darrin Farrant, 'If they are not refugees, what are they?',
The Age, 29 August 2001.

See Darrin Farrant, 'If they are not refugees, what are they?',
The Age, 29 August 2001; Chloe Saltau and Kerry Taylor,
'Revealed: new plan to screen asylum seekers', The Age, 13
August 2001; Liz Curran, 'Refuge in the law?' (2001) 11(7)
Eureka Street 17.

Katrine Del Villar
18 September 2001
Bills Digest Service
Information and Research Services

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